State v. Whigam
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 04/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROBERT JAMES WHIGAM, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0042 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-178890-002DT The Honorable Roger E. Brodman, Judge CONVICTION AFFIRMED; REMANDED REGARDING SENTENCING Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Robert James Whigam appeals from his conviction and sentence for burglary in the third degree. Whigam s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Whigam was afforded the opportunity to file a supplemental brief in propria persona but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶2 trial After court reviewing may have the record, conducted an we determined incomplete that colloquy the with Whigam, in violation of Arizona Rules of Criminal Procedure 17.6 ( Rule(s) ), in the process of accepting Whigam s stipulation to several prior convictions for sentencing purposes. We asked the parties to provide us with supplemental briefing according to Penson v. Ohio, 488 U.S. 75 (1988), in order to address the issue of whether the trial court omitted discussion of the constitutional rights Whigam was forgoing by his stipulation and whether the potentially incomplete colloquy constituted fundamental error requiring remand. ¶3 For the following reasons, we affirm Whigam s conviction and remand to the trial court for a determination on whether Whigam suffered prejudice colloquy. 2 based on the incomplete FACTS AND PROCEDURAL HISTORY ¶4 We the in the light therefrom view convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶5 In January 2010, Whigam was indicted on one count of burglary in the third degree, a class 4 felony. alleged that in Annette Brown, December entered 2009, or Whigam remained and his unlawfully The State co-defendant, in the fenced backyard of Teresa M. s house, with the intent to commit a theft or felony therein. maintained Brown s he had Whigam denied the State s allegations and license employment. September 2010. A The to enter four-day following the jury property trial evidence pursuant to commenced presented was in at Whigam s trial. ¶6 Theresa M. testified that she owned the three bedroom house ( house ) with her parents, James M. and Mary M. In September 2009, Theresa M. listed the house for sale with a realtor. She moved in with her parents in December 2009, because she was no longer able to make the mortgage payments. Her house was not yet in foreclosure as of December 2009. ¶7 to Theresa M. left behind a few belongings at the house, show dryer, the property wheelbarrow, was and not abandoned, patio table 3 including that were a all washer, in the backyard. She said she came to the vacant house once a week to check on the property, as she still retained the keys, and hoped to transfer the home by way of a short sale. The house was fully surrounded by a block wall, but had a locked side gate that allowed access to the backyard. A small apartment building and parking lot were located behind the house. ¶8 Theresa M. testified that no one from her bank had contacted her about the need for any kind of inspection to be done on the house. Further, she had never had contact with either of the co-defendants, could not identify either of them in court, and did not give either of them permission to go onto her property or take anything from her backyard. ¶9 from In court, Theresa identified an August 2010 statement her mortgage banker, which indicated notice on the home occurred in January 2010. her first overdue Theresa M. s Deed of Trust specified that the lender may inspect the property if it is vacant, abandoned or the loan was in default, in order to preserve the property. The document did not have any language regarding removal of personal belongings from the property. ¶10 Detective L., of the Phoenix Police Department, testified as to his surveillance of Brown and Whigam in December 2009. He observed them both, from an unmarked police car, in the front yard of Theresa M. s property. Detective L. testified that while in the front yard, Brown appeared to be holding a 4 clipboard and taking around the property. notes, while Whigam was looking in and Whigam then jumped over the block wall, into the backyard, while being observed by the detective. ¶11 After watching Brown and Whigam drive away, Detective L. drove around the block and saw their vehicle parked south of Theresa M. s house. Detective L. used binoculars to watch Whigam remove a wheelbarrow and a wood table from Theresa M. s backyard, which were both loaded into the back of their vehicle. After they drove off, a marked police car made a traffic stop of the vehicle Whigam and Brown were in, and the wheelbarrow and table from Theresa M. s backyard were in the vehicle. Detective L. identified both Whigam and Brown in court, as the people he saw in the truck when it was stopped after leaving Theresa M. s house. ¶12 After Detective L. s testimony, the state rested its case and defense counsel moved for acquittal pursuant to Rule 20. The defense argued that the case should be dismissed because the State had not proven the element that the defendants had entered the backyard of Theresa M. unlawfully. The motion was denied. ¶13 G. Whigam s co-defendant, Brown, was employed by Matthew to perform property inspections for mortgage companies. Matthew G. testified that he often hired Brown to visit homes, to determine whether or not they were occupied, and to report on 5 whether there appeared to be any concerns with the condition of the properties, for foreclosure, re-sale, or legal purposes. Brown s job duties, in performing property inspections, did not include removing anything from the properties. Matthew G. could not positively confirm that he sent Brown to Theresa M. s house on the day in question, but believed that he had. Whigam was not employed or trained by Matthew G. ¶14 Brown testified for the defense, and stated she worked for Matthew G. as a property inspector. She affirmed that she brought Whigam with her to do the property inspection on Theresa M. s house on the date in question, because she had been assaulted during a previous property inspection, and felt more comfortable if someone assisted her. Brown acknowledged that Whigam was her fiancé, and that he did not work for Matthew G., but was unemployed at the time. ¶15 Brown stated that she took Theresa M. s wheelbarrow and table from the backyard of the property, and admitted that it was not a part of her inspection duty to clean up debris on the properties she inspected. She believed the items would have otherwise been thrown away, as the table was pretty weathered and the wheelbarrow was located between two garbage cans, and felt she had a right to take the items. Brown stated she had Matthew G. s permission to remove this type of property, if she determined that it would eventually end up at the dump. 6 ¶16 The jury found Whigam guilty of burglary in the third degree. The court further found Whigam guilty of three prior historical felony convictions, after Whigam stipulated to having five prior felony convictions. Whigam was sentenced as a non- dangerous, category three repetitive offender, to the mitigated sentence of six years incarceration credit. imprisonment, with no presentence His sentence was scheduled to begin after the absolute discharge of a consecutive sentence in companion case CR 2009-144771. ¶17 to Whigam timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the Arizona ( A.R.S ) Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010). 1 DISCUSSION ¶18 The State acknowledges that the trial court did not specifically advise [Whigam] of his constitutional right[s] before accepting his stipulation to the prior convictions. State contends fundamental error however, because that the Whigam record cannot demonstrates The demonstrate Whigam was aware of the fundamental rights that he was giving up. 2 1 We cite to the current versions of the statutes when no revisions material to this decision have occurred since the date of the alleged offense. 2 Whigam was tried in a separate case (CR 2009-144771 and now 1 CA-CR 11-0033 on appeal) and found guilty. Whigam was 7 ¶19 Whenever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand. Ariz. R. Crim. P. 17.6. Rule 17.2 complements Rule 17.6 procedurally by providing a list for the trial court stipulation, to advise including the the defendant of constitutional when accepting rights forgone by stipulating to prior convictions. that may a be See, e.g., Ariz. R. Crim. P. 17.2(c); State v. Geeslin, 221 Ariz. 574, 578, ¶ 13, 212 P.3d 912, 916 (App. 2009), vacated in part on other grounds by 223 Ariz. 553, 554, ¶ 1, 225 P.3d 1129, 1130 (2010). ¶20 This record reveals that the trial court did not engage Whigam in a comprehensive dialogue to make sure he was aware of the constitutional rights he was forgoing. See State v. Carter, 216 Ariz. 286, 289, ¶¶ 16-17, 165 P.3d 687, 690 (App. 2007) (limited trial defendant aware of Alvarado, 121 Ariz. court his inquiry was constitutional 485, 490, 591 insufficient rights); P.2d cf. 973, to make State 978 v. (1979) (concluding defendant was aware of the rights he was giving up even though the Rule 17.6 colloquy was incomplete because those sentenced on both cases simultaneously on January 7, 2011. Therefore, the trial court s colloquy was identical for both sentences. The State, in cause number CR 2009-144771/1 CA-CR 11-0033, conceded that the colloquy was incomplete and suggested remand to determine if Whigam was prejudiced by the omission. 8 constitutional rights had been explained to defendant). The trial court did not discuss Whigam s right to a jury trial; the right to present evidence on his behalf; the right to testify or not testify; or the right to cross-examine witnesses. the court explain what happens when Whigam gives Nor did up those various rights once a stipulation is accepted and entered. ¶21 Our supreme court has held that a complete failure to afford a Rule 17.6 colloquy is fundamental error because a defendant s waiver of constitutional rights must be voluntary and intelligent. P.3d 479, 481 State v. Morales, 215 Ariz. 59, 61, ¶ 10, 157 (2007). Here, the court conducted a partial colloquy, but the colloquy did not address the constitutional rights that Whigam would be giving up. We conclude, based on our supreme court s Morales opinion and Rules 17.6 and 17.2, that not addressing Whigam s constitutional rights constituted fundamental error. ¶22 establish The State argues that other portions of the record that Whigam constitutional rights. was already familiar with his Although we agree that Whigam probably was already familiar with his constitutional rights, we perceive that our supreme court imposed the requirements under Rules 17.6 and 17.2 in order to make sure that a defendant is aware of his constitutional rights before admitting instead of the State actually proving them. 9 to prior convictions ¶23 Under a fundamental error analysis, Whigam must also make a showing that the incomplete colloquy created prejudice. Id. at 62, ¶ 11, 157 P.3d at 482; see also State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005) (stating that fundamental error requires the defendant to prove prejudice). [P]rejudice generally must be established by showing that the defendant would not have admitted the fact conviction had the colloquy been given. of the prior Morales, 215 Ariz. at 62, ¶ 11, 157 P.3d at 482. ¶24 The error, the State proper acknowledges remedy is that remand if we for a prejudice and resentencing if appropriate. find fundamental determination We agree. of A remand is necessary unless the trial record reflects that competent evidence proving Whigam s prior convictions was admitted in the pretrial or trial phase. necessary after convictions hearing). contain See id. at ¶ 13 (holding no remand incomplete was entered colloquy into when evidence evidence during of a prior pretrial The State further concedes that the record does not evidence conclusively proving Whigam s prior convictions. ¶25 he We conclude that Whigam is entitled to remand so that may demonstrate, prejudiced him. We if he can, recognize how that the it Whigam to prove that he was prejudiced. 10 incomplete may be colloquy difficult for Nevertheless, we deem it appropriate to return this matter to the trial court in order to safeguard the constitutional protections found complete colloquy under Rule 17.6 and Rule 17.2. within a Carter, 216 Ariz. at 291-92, ¶¶ 23-27, 165 P.3d at 692-93; see also State v. Osborn, 220 Ariz. 174, 178-79, ¶¶ 10-13, 204 P.3d 432, 436-37 (App. 2009). ¶26 Having further considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find no error in the verdict and no error in sentencing other than the incomplete colloquy regarding prior convictions. As far as the record reveals, Whigam was represented by counsel at all stages of the proceedings, there was sufficient evidence to sustain the verdict, and the jury was properly instructed. CONCLUSION ¶27 Based on our review of the record and the parties supplemental briefing, we affirm Whigam s conviction. Because the trial court committed fundamental error by providing Whigam an incomplete Rule 17.6 colloquy, we remand to the trial court for a determination on whether Whigam suffered any prejudice. If Whigam demonstrates that he suffered prejudice, the trial court should resentence him. However, if Whigam demonstrate any prejudice, his sentence is affirmed. 11 does not ___/s/_______________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/___________________________ MAURICE PORTLEY, Judge T H O M P S O N, Judge, dissenting. ¶28 I would affirm. The trial court s sentencing decisions are properly based on information in the presentence report and the criminal history listed in the record. State v. Marquez, 127 Ariz. 3, 6, 617 P.2d 787, 790 (App. 1980). did not priors. object See to Rule the criminal 26.8, history Arizona Rules which of Whigam documents Criminal his Procedure (parties must object to contents of report before sentencing). Instead, he stipulated appropriately found. to the priors, which the court then Because Whigam s priors are documented in the record, the majority errs in remanding here, as defendant has not been prejudiced by the assertedly inadequate colloquy. See State v. Morales, 215 Ariz. 59, 62, ¶ 13, 157 P.2d 479, 482 (2007). Whigam has not even asserted prejudice on appeal. Accordingly, I dissent. ____/s/__________________________ JON W. THOMPSON, Presiding Judge 12
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